ALASKA WORKERS' COMPENSATION BOARD



ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 115512 Juneau, Alaska 99811-5512

| | | |

|CAROLINE E. LEE, |) | |

| |) | |

|Employee, |) |FINAL DECISION AND ORDER |

|Applicant, |) | |

| |) |AWCB Case No. 200722432 |

|v. |) | |

| |) |AWCB Decision No. 10-0082 |

|ALASKA NATIVE MEDICAL CENTER, |) | |

| |) |Filed with AWCB Anchorage, Alaska |

|Employer, |) |on May 5, 2010 |

| |) | |

|and |) | |

| |) | |

|ALASKA NATIONAL INSURANCE CO, |) | |

| |) | |

|Insurer, |) | |

|Defendants. |) | |

| |) | |

Caroline E. Lee’s (Employee) Workers’ Compensation Claim was heard on April 21, 2010, in Anchorage, Alaska. Attorney Jonathan Hegna represented Employee. Attorney Theresa Hennemann represented Alaska Native Medical Center and its insurer (Employer). Witnesses included: Caroline E. Lee. The record closed at the hearing’s conclusion on April 21, 2010.

ISSUES

Employee requested re-employment benefits. Rehabilitation specialist Lulie Williams performed a reemployment eligibility evaluation on Employee and deemed her ineligible for reemployment benefits because Dr. Larry Levine, M.D. approved Employee’s return to work in three occupations.. Reemployment Benefits Administrator designee (RBA Designee) reviewed the evaluation and concluded Employee was ineligible for reemployment benefits on October 27, 2009.

Employee contends the Reemployment Benefits Administrator designee (RBA Designee) abused her discretion in finding her ineligible for reemployment because Dr. Levine approved job descriptions subject to limitations and modifications that rendered the approval inoperative. Employer contends Employee made an untimely request for review of the reemployment eligibility determination. Employer further contends the RBA Designee acted appropriately because Dr. Levine approved several job descriptions, including the job Employee held at the time of her injury.

1) Is Employee’s request for review of the October 27, 2009 eligibility decision untimely?

2) Did the RBA Designee abuse her discretion in finding Employee ineligible for reemployment benefits on October 27, 2009, and is her decision supported by substantial evidence?

FINDINGS OF FACT

A preponderance of the evidence establishes the following facts:

1) On August 11, 2008, Employee reported a work-related injury of “December 2007” to both wrists; these injuries were alleged to be a result of typing without ergonomic equipment (Report of Occupational Injury or Illness, August 11, 2008).

2) On January 25, 2008, Employee sought treatment for bilateral wrist and finger pain and swelling at the Alaska Native Medical Center (ANMC) Family Medicine Center (Alaska Native Medical Center Report, January 25, 2008).

3) On June 26, 2008, Employee received a carpal tunnel injection (Alaska Native Medical Center Report, June 26, 2008).

4) On August 18, 2008, Candace Clawson, D.O., performed a right carpal tunnel decompression on Employee (Alaska Native Medical Center Operative Report, August 18, 2008).

5) On November 20, 2008, Dr. Clawson provided a note stating Employee could “return to work unrestricted” (Alaska Native Medical Center Medical Report of Duty Status, November 20, 2008).

6) On March 13, 2009, Liz Dowler, Ph.D. completed a therapeutic Ergonomic Evaluation of Employee which included seven recommendations:

I) To enable worker to key with the wrists straight and reduce the pressure on the carpal tunnel area and forearms, replace the current KTEA tray with the KTLP with KT arm mode so that that tray can tilt a negative 25 to 30 degrees. She will need to learn to touch type a little more accurately as the tray needs to be this tilted to reduce her symptoms.

II) Consider switching from the mouse to a Kensington Expert 5.0 trackball. The trackball puts less strain on the forearm and hand muscles, and makes it easier to maintain neutral wrist posture during operation. Place the trackball beside the keyboard on the left side to minimize reaching.

III) The Microsoft natural keyboard is recommended for this individual because it eliminates ulnar deviation of the wrists. Consequently, it is often helpful in reducing the risk of carpal tunnel syndrome, forearm tendonitis and internal rotation of the shoulders. The Microsoft keyboard may be used in a tilt down tray to keep the wrists straight while keying.

IV) Use an acrylic copyholder with line guide, 11 inches high and 14 inches wide, with line Guide. Easel angle and depth are adjustable. The copyholder holds open files while minimizing forward flexion and neck rotation at the computer station.

V) Avoid leaning and reaching across the desktop to write. Move the tray in and move up to the desk or move tray to there is room to move closer to the desktop.

VI) Avoid holding the phone between neck and shoulder in the “neck crunch” position, which overloads the neck and shoulder muscles. Use a headset to keep hands free to hold the phone during phone conversations.

VII) If the combination of these recommendations and physical therapy do not help the next option is voice activated typing. It does not sound like this is a viable solution to the location and the work she does, thus may require a job change (Situs Ergonomics, LLC Therapeutic Ergonomic Evaluation of Caroline Lee by Dr. Dowler, March 13, 2009).

7) On June 18, 2009 Dr. Levine performed a nerve conduction study, which was normal. Dr. Levine declared Employee medically stable, gave her a permanent impairment rating of 2% total for both wrists, recommended against further surgical decompression and stated “I think again modifications of the job, etc. should be in order” (Medical Report of Dr. Levine, June 18, 2009).

8) On August 7, 2009, Lulie Williams was assigned as the reemployment specialist to evaluate Employee’s eligibility for retraining benefits, as requested by Employer (Debra Reed’s letter to Employee, August 7, 2009).

9) On August 18, 2009, Dr. Levine wrote: “Caroline was given an updated status report, which notes she is to avoid other repetitive activities with her hands and wrists, she is to be allowed frequent breaks, and her worksite is to be set up per the recommendations of the ergonomic evaluation from February 2009. She is certainly capable of sedentary capacity work and possibly even light duty. She is not disabled” (Report of Dr. Levine, August 18, 2009).

10) On September 14, 2009, Employee’s treating physician, Marc Kornmesser, M.D., agreed with Dr. Levine about Employee’s medical stability and concluded no further neurological or surgical treatment was necessary; however, he did suggest Employee might benefit from a myofascial pain specialist (Letter from Dr. Kornmesser, September 14, 2009).

11) In August, 2009, Dr. Levine reviewed seven job descriptions purportedly from Employee’s work history within ten years of the reported injury date. Dr. Levine approved Employee to return to each of the seven jobs, namely: Registrar Coordinator (205.362-018/205.162-010), Case Manager (195.367-034), Administrative/Human Resources Assistant (169.167-010/209.362-026), Elder Provider (195.367-010), Medical Clerk (237.367-038), Day Care Owner (359.677-018) and Elder Specialist/Caseworker (195.107-018) (Job Descriptions with Dr. Levine’s approval, August 24 and August 25, 2009).

12) At Hearing on April 21, 2010, Employee testified she left the job of Elder Specialist/Caseworker (195.107-018) before October 15, 1997. Accordingly Employee had not performed the job of Elder Specialist/ Caseworker within the ten years before December of 2007 (Lee).

13) On October 6, 2009, reemployment specialist Lulie Williams and Dr. Dowler (who had done the March 13, 2009 Therapeutic Ergonomic Evaluation of Employee noted above) submitted a report noting Dr. Levine approved seven job descriptions, but his approval of the seven jobs “was questioned as his previous and subsequent written notes are contradictory.” Ms. Williams provided excerpts of specific notes before and after Dr. Levine’s August 24 & 25 job approvals:

Work Status Report dated 8/17/09 states: ”1) she should avoid highly repetitive activities with hands/wrists; 2) Worksite set up per ERGO eval recommended Feb. 2009.”

Office Notes, September 15, 2009: “We discussed her job description. Those have been signed off on. We do still have the modifications that her worksite must be set up per her ergonomic evaluation in February 2009. She must be allowed frequent breaks and try to avoid highly repetitive activities with the hands and wrists.”

Ms. Williams and Dr. Dowler removed the “Hospital Admitting Clerk” job (listed on page 4 of her report as Registrar Coordinator) (205.362-018/205.162-010) from consideration because the Dr. Levine’s approval had been with “restrictions per the ergonomic evaluation. This is interpreted to mean that she cannot perform the job duties, as the ergonomic recommendations cannot be made for this position.”

Ms. Williams and Dr. Dowler’s evaluation also noted: “Three of the job descriptions, ‘Case Aide,’ ‘caseworker Family and Social Service Aide’ (listed on page 4 of the same report as Provider (195.367-010), ‘Elder Specialist/Caseworker’ (195.107-018), and ‘Case Manager’ (195.367-034) respectively, do not show the job duties require ‘highly repetitive activities with the hands and wrists.’”

Ms. Williams performed a labor market survey for those three jobs and “found nine (9) advertised positions for which I believe Ms. Lee would qualify. These positions are frequently with agencies that work with disabilities so they would probably be amenable to making reasonable accommodations, though the descriptions sound as though she would not need accommodation.”

Ms. Williams concluded Employee was not eligible for reemployment because Employee was “able to perform three of the occupations that she held during the ten years prior to the date of injury. There are a reasonable number of job openings that exist for which she is qualified to apply” (Eligibility Report of Lulie Williams, October 6, 2009).

14) On October 27, 2009, RBA Designee Deborah Torgerson determined Employee was not eligible for reemployment benefits based on the October 6, 2009 eligibility evaluation report by Lulie Williams. RBA Designee Torgerson specifically noted “Dr. Levine predicted that you would have the permanent physical capacities to perform the physical demands of your job at the time of injury, as well as all of the other jobs that you have held during the ten-year period prior to your injury. . . .“ (Letter from RBA Designee Torgerson, October 27, 2009).

15) On November 12, 2009, Employee received RBA Designee Torgerson’s non-eligibility for reemployment benefits determination which included the statement: “If you disagree with my decision that you are not eligible for reemployment benefits, you must complete and return the attached Workers’ Compensation Claim (Form #7-6106) within 10 days of receipt of this letter.” (Return receipt Card signed by Caroline Lee, November 12, 2009).

16) On November 23, 2009, Employee filed a Workers’ Compensation Claim (WCC), served on November 24, 2009, requesting review of the October 27, 2009 RBA Designee determination of Employee ineligibility for reemployment benefits (WCC, November 23, 2009).

PRINCIPLES OF LAW

Sec. 23.30.001. Intent of the legislature and construction of chapter. It is the intent of the legislature that

1) This chapter be interpreted so as to ensure the quick, efficient, fair, and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of this chapter;

2) Worker’s compensation cases shall be decided on their merits except where otherwise provided by statute. . . .

Sec. 23.30.005. Alaska Workers’ Compensation Board.

. . .

(h) The department shall adopt rules . . . and shall adopt regulations to carry out the provisions of this chapter. . . . Process and procedure under this chapter shall be as summary and simple as possible.

The board may base its decision not only on direct testimony, medical findings, and other tangible evidence, but also on the board’s “experience, judgment, observations, unique or peculiar facts of the case, and inferences drawn from all of the above.” Fairbanks North Star Borough v. Rogers & Babler, 747 P.2d 528, 533-534 (Alaska 1987).

Sec. 23.30.041. Rehabilitation and reemployment of injured workers. . . .

. . .

(d) Within 30 days after the referral by the administrator, the rehabilitation specialist shall perform the eligibility evaluation and issue a report of findings. . . . Within 14 days after receipt of the report from the rehabilitation specialist, the administrator shall notify the parties of the employee’s eligibility for reemployment preparation benefits. Within 10 days after the decision, either party may seek review of the decision by requesting a hearing under AS 23.30.110. The hearing shall be held within 30 days after it is requested. The board shall uphold the decision of the administrator except for abuse of discretion on the administrator’s part.

(e) An employee shall be eligible for benefits under this section upon the employee’s written request and by having a physician predict that the employee will have permanent physical capacities that are less than the physical demands of the employee’s job as described in the 1993 edition of the United States Department of Labor’s ‘Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles’ for:

1) the employee’s job at the time of injury; or

2) other jobs that exist in the labor market that the employee has held or received training for within 10 years before the injury or that the employee has held following the injury for a period long enough to obtain the skills to compete in the labor market, according to specific vocational preparation codes as described in the 1993 edition of the United States Department of Labor’s ‘Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles.’

The RBA-Designee’s decision must be upheld absent “an abuse of discretion on the administrator’s [designee’s] part.” Several definitions of “abuse of discretion” appear in Alaska law although none appear in the Alaska Workers’ Compensation Act (Act). The Alaska Supreme Court stated abuse of discretion consists of “issuing a decision which is arbitrary, capricious, manifestly unreasonable, or which stems from an improper motive.” Sheehan v. University of Alaska, 700 P.2d 1295, 1297 (Alaska 1985). See also Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979). An agency’s failure to properly apply the controlling law may also be considered an abuse of discretion. Manthey v. Collier 367 P.2d 884, 889 (Alaska 1962); Black’s Law Dictionary 25 (4th ed. 1968).

The Administrative Procedure Act (APA) provides another definition used by courts in considering appeals from administrative agency decisions. It contains terms similar to those above and expressly includes reference to a “substantial evidence” standard:

Abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. . . . If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by (1) the weight of the evidence; or (2) substantial evidence in the light of the whole record.

AS 44.62.570.

On appeal to the Alaska Worker’s Compensation Appeals Commission and the courts, decisions reviewing RBA-Designee determinations are subject to reversal under the “abuse of discretion” standard in AS 44.62.570 incorporating the “substantial evidence test.” While applying a substantial evidence standard a “[reviewer] may not reweigh the evidence or draw its own inferences from the evidence. If, in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, then the order . . . must be upheld.” Miller v. ITT Arctic Services, 367 P.2d 884, 889 (Alaska 1962). Determining whether an abuse of discretion has taken place is aided by the practice of allowing additional evidence at the review hearing, based on the rationale expressed in several superior court opinions addressing Board decisions. See, e.g., Kelley v. Sonic Cable Television, Superior Court Case No. 3AN 89-6531 CIV (February 2, 1991); Quirk v. Anchorage School District, Superior Court Case No. 3AN-90-4509 CIV (August 21, 1991). Nevertheless, 8 AAC 45.070(b)(1)(A) precludes additional evidence if the party offering it failed to exercise reasonable diligence in developing and presenting it to the RBA-Designee. See, e.g., Kin v. Norcon, AWCB Decision No. 99-0041 (March 1, 1999); Lemire v. B&R Construction, AWCB Decision No. 99-0019 (January 28, 1999); Buxton v. Cameron Corporation, AWCB Decision No. 99-0005 (January 8, 1999).

As noted in Yahara v. Construction & Rigging, Inc., 851 P.2d 69 (Alaska 1993) an RBA Designee’s decision is reasonable if supported by substantial evidence. As noted in Miller v. ITT Arctic Services, 367 P.2d 884, 889 (Alaska 1962) the evidence is not be reweighed, rather, “If in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, the the order . . . must be upheld.”

After allowing parties to offer admissible evidence, all the evidence is reviewed to assess whether the RBA-Designee’s decision was supported by substantial evidence and therefore reasonable. Yahara v. Construction & Rigging, Inc., 851 P.2d 69 (Alaska 1993). If, in light of all the evidence, the RBA-Designee’s decision is not supported by substantial evidence, the RBA-Designee abused her discretion and the case is remanded for reexamination and further action.

Board decisions must be supported by “substantial evidence,” i.e., “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Miller, 577 P.2d at 1049. The judiciary may not reweigh evidence before the board, (id. at 1049), but it also will not abdicate its reviewing function and affirm a Board decision that has only “extremely slight” supporting evidence. Black v. Universal Services, 627 P.2d 1073 (Alaska 1981).

Sec. 23.30.135. Procedure before the board. (a) In making an investigation or inquiry or conducting a hearing the board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided in this chapter. The board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties. . . .

8 AAC 45.060. Service. (b). If a right may be exercised or an act is to be done, three days must be added to the prescribed period when a document is served by mail.

8 AAC 45.063. Computation of time. (a). In computing any time period prescribed by the Act or this chapter, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period is included, unless it is a Saturday, Sunday or a legal holiday, in which case the period runs until the end of the next day, which is neither a Saturday, Sunday nor a holiday.

ANALYSIS

1) Is Employee’s request for review of the October 27, 2009 eligibility decision untimely?

AS 23.30.041(d) allows a party to request a review of an RBA Designee’s determination of eligibility or non-eligibility “within 10 days after the decision.” RBA Designee Torgerson’s October 27, 2009 determination letter refines that time period by specifically concluding with the following instruction: “If you disagree with my decision that you are not eligible for reemployment benefits, you must complete and return the attached Workers’ Compensation Claim (Form #7-6106) within 10 days of receipt of this letter.”[1]

Though Employee’s brief states Employee received the RBA Designee’s decision on November 13, 2009, it appears from Exhibit “B” attached to Employee’s brief she signed for the letter on November 12, 2009.[2] Under 8 AAC 45.063(a), the time period for Employee to appeal the RBA Designee’s determination began on November 13, 2009, because the day of the act or event after which the designated period of time begins to run is not included in time calculations. Since the appeal period began to run, according to the RBA Designee’s letter when Employee “received” the letter, and she received it on November 12, 2009, and November 12, 2009 is not included in the ten-day period, the clock began running on November 13, 2009. Three days are added to the time for party to take prescribed action when a document is served by mail. Accordingly, November 25, 2009 was the deadline for a timely appeal (10 days from November 12, 2009 = November 22, 2009 + 3 days for mailing = November 25, 2009). November 22, 2009 was, as Employee’s Brief notes, a Sunday. Under 8 AAC 45.060(b) the deadline for a timely appeal would be advanced three days to Wednesday, November 25, 2009. Employee filed her appeal of the RBA Designee’s determination on Monday, November 23, 2009. Accordingly, Employee’s request for review of RBA Designee Torgerson’s determination was timely.

2) Did the RBA Designee abuse her discretion in finding Employee ineligible for reemployment benefits on October 27, 2009, and is her decision supported by substantial evidence?

AS 23.30.041 provides an employee is ‘eligible” for reemployment benefits if a physician predicts she will have permanent physical capacities “less than the physical demands” of her job at the time of injury, or other jobs that exist in the labor market she held or received training for within 10 years before the injury. Here the RBA Designee found Employee not eligible for rehabilitation and reemployment benefits because the designne found Dr. Levine released Employee to return to her job at the time of injury and declared her physically capable of performing the physical requirements for all jobs she held in the 10 years prior to the date of her injury. However, the reemployment specialist qualified Dr. Levine’s approval of Employee’s past jobs by noting “Dr. Levine’s approval of these job descriptions was questioned as his previous and subsequent written notes are contradictory.”[3] The October 6, 2009 eligibility report specifically noted on September 15, 2009, Dr. Levine met with Employee and “We discussed her job description. Those have been signed off on. We do still have the modifications that her worksite must be set up per her ergonomic evaluation in February 2009. She must be allowed frequent breaks and try to avoid highly repetitive activities with the hands and wrists.”[4]

The October 6, 2009 Eligibility Report went on to conclude Dr. Levine’s August 24 and August 25, 2009 approvals of at least four of the seven jobs were not considered appropriate by the evaluators because those jobs involve physical capacities demands of Employee inconsistent with the limitations referenced by Dr. Levine on September 15, 2009. Ms. Williams and Dr. Dowler concluded at least three of the jobs approved by Dr. Levine were within Employee’s physical capacities. They wrote: “Therefore, one can assume that Dr. Levine approves these three job descriptions (Caseworker, Family/195.107-018. Case Aide/195.367-010 and Social Service Aide/195.367-034) without modifications since the job does not require highly repetitive activities with the hands and wrists.”[5]

Ms. Williams and Dr. Dowler noted nine, open, advertised positions were found in a labor market survey for the three job categories Employee was considered capable of performing. In apparent consideration of Dr. Levine’s September 15, 2009 comment: “We do still have the modifications that her worksite must be set up per her ergonomic evaluation in February 2009,” Ms. Williams and Dr. Dowler noted in regard to the nine jobs found in the labor market: “These positions are frequently with agencies that work with disabilities so they would probably be amenable to making reasonable accommodations, though the descriptions sound as though she would not need accommodation.”[6]

Ms. Williams and Dr. Dowler both took note of Dr. Levine’s ergonomic recommendations and concluded at least three of Employee’s prior employers would be amenable to making those accommodations. Further, they specifically noted those job descriptions would probably not even need accommodation.

In her testimony, Employee noted one of the three jobs, namely the Family Caseworker was actually a job she had not held within the ten-year period prior to her injury.[7] Employee’s testimony about having worked as a Family Caseworker was credible and undisputed. Accordingly, the Family Caseworker should not have been considered in the re-employment evaluation.

The Case Worker and Social Service Aide positions remain as jobs approved by Dr. Levine and deemed by Ms. Williams and Dr. Dowler to be amenable to Dr. Levine’s September 15, 2009 job site modifications and requirements. Ms. Williams and Dr. Dowler not only were aware of Dr. Levine’s somewhat contradictory notes, but highlighted those contradictions to give Employee a greater opportunity to obtain re-employment benefits. Whereas Dr. Levine approved seven job descriptions for Employee, Ms. Williams and Dr. Dowler applied Dr. Levine’s notes in a manner beneficial to Employee and concluded Dr. Levine had really only approved three jobs for Employee. Furthermore, the ergonomic recommendations for Employee referenced by Dr. Levine were written by Dr. Dowler. Those seven “recommendations” are: to use a certain kind of key tray if a job involves typing, use of a certain type of computer mouse, keyboard, and copyholder, and advising Employee to exercise good posture, not use her neck to hold the phone ,and perform physical therapy.[8] Since Dr. Dowler actually made those ergonomic recommendations, she knew exactly what Employee needed in regard to those modifications.

RBA Designee Torgerson noted Ms. Williams and Dr. Dowler had “conducted labor market research and documented that ‘. . . a reasonable number of job vacancies exist. . .’ per 8 AAC 45.525(b)(4), for many of the jobs that your performed in the past ten-year”.[9] The RBA Designee decision confirmed, and was based on, the findings of Ms. Williams and Dr. Dowler. The decision was therefore not arbitrary or capricious as it reflected the conclusions of the careful analysis of Ms. Williams and Dr. Dowler. It is not a manifestly unreasonable decision. No one has suggested an improper motive. Similarly, a reasonable person could rely upon Ms. Williams’ and Dr. Dowler’s analysis. Accordingly, the RBA Designee finding is supported by substantial evidence.

The weight of evidence presented by Ms. Williams and Dr. Dowler shows Dr. Levine approved seven jobs and although he later added ergonomic limitations, the evaluation determined at least three of those jobs were consistent with all limitations. In light of the whole record, the conclusions of the re-employment evaluation were supported by substantial evidence as defined in the Administrative Procedures Act. RBA Designee Torgerson looked at the report and recommendations of Ms. Williams and Dr. Dowler and concluded they had a reasonable basis for finding non-eligibility for re-employment training by Employee. The RBA Designee could see Dr. Levine approved of all of the jobs. It was evident to the RBA Designee Dr. Levine did not regard his own ergonomic recommendations as obstacles to Employee’s return to work because he acknowledged them when he met with Employee on September 15, 2009, and reiterated he signed off on the jobs.[10] Dr. Levine did not regard the modifications to Employee’s jobs as meaningful restrictions precluding her from returning to work. Instead, he noted: “Those (jobs) have been signed off on.”[11] In addition to Dr. Levine’s approval of all of the jobs presented to him, Ms. Torgerson also referenced the labor market research of Ms. Williams and Dr. Dowler as a reasonable basis to confirm re-employment benefits were unnecessary in this case.

CONCLUSIONS OF LAW

1) Employee’s request for review of the October 27, 2009 eligibility decision was timely.

2) The RBA Designee did not abuse her discretion in finding Employee ineligible for reemployment benefits on October 27, 2009, and her decision is supported by substantial evidence.

ORDER

1) The RBA-Designee’s October 27, 2009 finding Employee was ineligible for a reemployment benefit is affirmed.

2) Employee’s appeal of the RBA-Designee’s October 27, 2009 finding Employee was ineligible for reemployment benefits is denied.

Dated in Anchorage, Alaska on May 5 , 2010.

ALASKA WORKERS’ COMPENSATION BOARD

Linda Hutchings, Member

David Robinson, Member

DISSENT

In her October 27, 2009 determination Employee was not eligible for re-employment benefits, RBA Designee Torgerson stated Ms. Williams and Dr. Dowler documented Dr. Levine predicted Employee would have the physical capacities to perform the physical demands of her “job at the time of injury, as well as all the other jobs that you have held during the ten-year period prior to your injury.” To the contrary, Ms. Williams and Dr. Dowler concluded Dr. Levine imposed restrictions on all jobs Employee held and found only three jobs met Dr. Levine’s restrictions. Furthermore, Ms. Williams and Dr. Dowler concluded those three jobs “would probably be amenable to making reasonable accommodations, though the descriptions sound as though she would not need accommodation.”[12]

However, Dr. Levine declared the accommodations “must be set up per her ergonomic evaluation in February 2009.”[13] Employee has been denied re-employment benefits even though her physician clearly stated she has restrictions that must be accommodated before she can return to work. AS 23.30.041(e) states an employee shall be eligible for re-employment benefits when a physician predicts permanent physical capacities “that are less than the physical demands of the employee’s job … (1) …at the time of injury; or (2) other jobs.”[14] Dr. Levine identified restrictions that must be met and Ms. Williams and Dr. Dowler thought they probably would be met. Consequently, the RBA Designee abused her discretion by mis-stating the evaluation and ignoring the substantial weight of evidence showing Dr. Levine found Employee’s permanent physical capacities to be less than the physical demands of the jobs for which she was approved. Employee’s appeal should have been granted and the RBA-Desinee’s decision should have been reversed and remanded to the RBA-Designee for further action consistent with this dissent.

Dated in Anchorage, Alaska on May 5, 2010.

ALASKA WORKERS’ COMPENSATION BOARD

Talis Colberg,

Designated Chairman

APPEAL PROCEDURES

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Effective November 7, 2005 proceedings to appeal must be instituted in the Alaska Workers’ Compensation Appeals Commission within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board. If a request for reconsideration of this final decision is timely filed with the Board, any proceedings to appeal must be instituted within 30 days after the reconsideration decision is mailed to the parties or within 30 days after the date the reconsideration request is considered denied due to the absence of any action on the reconsideration request, whichever is earlier. AS 23.30.127

An appeal may be initiated by filing with the office of the Appeals Commission: (1) a signed notice of appeal specifying the board order appealed from and 2) a statement of the grounds upon which the appeal is taken. A cross-appeal may be initiated by filing with the office of the Appeals Commission a signed notice of cross-appeal within 30 days after the board decision is filed or within 15 days after service of a notice of appeal, whichever is later. The notice of cross-appeal shall specify the board order appealed from and the grounds upon which the cross-appeal is taken. AS 23.30.128

RECONSIDERATION

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

MODIFICATION

Within one year after the rejection of a claim, or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200, or 23.30.215, a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

CERTIFICATION

I hereby certify the foregoing is a full, true and correct copy of the Final Decision and Order in the matter of CAROLINE E. LEE Employee / Applicant v. ALASKA NATIVE MEDICAL CENTER, Employer; ALASA NATIONAL INSURANCE CO, Insurer / Defendants; Case No. 200722432; dated and filed in the office of the Alaska Workers’ Compensation Board in Anchorage, Alaska, on May , 2010.

Kimberley Weaver, Clerk

-----------------------

[1] October 27, 2009 letter from RBA Designee Torgerson to Employee.

[2] Exhibit B, Employee’s Brief.

[3] Eligibility Report by Ms. Williams and Dr. Dowler, October 6, 2009, page 4.

[4] Ibid.

[5] Ibid., page 5.

[6] Ibid., page 7.

[7] Caroline Lee testimony, hearing record.

[8] Situs Ergonomics LLC evaluation of Employee by Dr. Liz Dowler, Ph.D., March 13, 2009.

[9] RBD Designee finding of Employee non-eligibility for re-employment, October 27, 2009.

[10] Dr. Levine Office notes, September 15, 2009.

[11] Ibid.

[12] Reemployment Evaluation of Ms. Williams and Dr. Dowler, page 7, October 6, 2009.

[13] Office Notes of Dr. Levine, September 15, 2009.

[14] AS 23.30.041(e)(1) & (2)

-----------------------

[pic]

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download